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CRIMINAL CASE IN ACTION: ESSENTIALS OF CRIMINAL

PROCEEDINGS

VICHAI ARIYANUNTAKAChief Judge of the Central Labour Court

Bangkok, Thailand

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MAJOR LEGAL TRADITIONS OF THE WORLD

– THE CIVIL LAW TRADITION• Roman Law, Codification, Inquisitorial Procedure

– THE COMMON LAW TRADITION• Anglo-American, Importance of court decisions, Adversarial

Procedure– LEGAL TRADITION BASED ON RELIGION

• Muslim law particularly in family and succession law

• INFLUENCE OF CIVIL LAW TRADITION IN ASIA– FRENCH, GERMAN, DUTCH, SPANISH

• INFLUENCE OF COMMON LAW (ANGLO-AMERICAN) TRADITION– ENGLISH LAW– AMERICAN LEGAL CONCEPTS IN JAPAN AND THE

PHILIPPINES

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THE THAI LEGAL SYSTEM

• CIVIL LAW TRADITION but adversarial system of procedure

• CODIFICATION

• ENGLISH LAW INFLUENCE IN COMMERCIAL AND PROCEDURAL LAW

• WTO AND TRIPS (TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS)

• Human Rights movement and protection of civil liberties – major influence in criminal justice system

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A Criminal Action: Judge and the legal profession

• Judge• Prosecutor, Public Prosecutor• Attorney-General Office• Private Prosecution• Injured person• Defendant, Alleged Offender• Defense Lawyer• Lawyer for the Defendant

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Judge/Public Prosecutor/Attorney

• Judge

– Career judge (Thailand, Japan, France)

– In Thailand -- LLB, Barrister-at-law, two-year practice at the Bar or other legal profession

– Pass competitive examination

• Appointment from successful Queen’s Counsels (QC – Senior Barrister)

– England

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Public Prosecutor/Private Attorney

• Public Prosecutor

– Educational qualifications: same as judges

– Caution: Brain drain from public sectors to private sectors in the light of economic success

• Private Attorney

– Division between Barrister and Solicitor in England

– Litigator (Trial Lawyer and Consultant elsewhere)

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Adversarial V. Inquisitorial System

• Adversarial system– Role of a judge

• Passive, act as an umpire

• Leave the examination of witnesses mainly to the lawyers from both sides

• Adhere to Burden and Standard of Proof

• Common Law and Anglo-American Practice

• Inquisitorial system• More involvement of judges in the examination of witnesses

• Problem: The Maintenance of Neutrality for judges

• “Justice must not only be done, but must manifestly be seen to be done”

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Essential Elements in a Criminal Case

• Judge sitting alone, but may consist in a quorum of two or more

• Judge sitting with jury (UK, US)

• Jury to decide question of fact and judge to decide question of law

• Jury consisting of 12 people chosen at random from a list of electorate

• Jury to hear only admissible evidence screened by the judge

• Rigorous rules of evidence

• Conviction will need unanimous or majority of 10:2 (in England)

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Essential Elements in a Criminal Case

• Jury trial – a very expensive system of trial but claimed by common law to be the guarantee of fair trial and protection of civil liberty

• Thailand did not choose jury trial because the expenses involved and what if the accused can corrupt or bribe one or two jurors?

• Jury trial creates lawyers who perfect at the art of persuasion or advocacy but not necessarily finding the truth

• The trial of O.J. Simpson, Michael Jackson

• Judge sitting alone (without jury) enjoys more freedom of admissibility of evidence

• But what is the guarantee of neutrality and objectivity?

• A Code of Judicial Etiquettes is necessary

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Essential Elements in a Criminal Case

• The presumption of innocence of the accused until proven guilty by the prosecution

• The pleading of the accused: guilty or innocence

• In case of doubt, an innocence plea will be entered

• Confession by the accused acquired by police through fraud, coercion, torture, promise – inadmissible --- resulting in the case being dismissed

• Right of a counsel (lawyer) appointed by the State for the accused where the charge involves imprisonment or where the accused is a juvenile (i.e. under 18 yrs of age)

• Conviction on the confession alone where the charge is not so serious (maximum penalty less than 5 yrs. imprisonment)

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Public v. Private Prosecution

• Under Thai law a criminal prosecution could be brought to the court by a Public Prosecutor or by the injured party

• Burden of Proof, Standard of Proof --- the same

• A private prosecution is brought where the public prosecution refuses to prosecute for insufficiency of evidence but the injured party disagrees and want to seek justice by employing a lawyer for a private prosecution

• A committal hearing will be conducted by the court in a private prosecution to examine whether the case warrants a hearing

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At the Hearing of a Criminal Case

• Burden of Proof• In a criminal case it is the burden of the

prosecution to proof beyond reasonable doubt the alleged offense committed by

the defendant.• The benefit of doubt shall be given to the

defendant.• Standard of Proof in a Criminal Case:

Proof Beyond Reasonable Doubt

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Contrast a Criminal Action with a Civil Action

• Standard of Proof– Proof beyond reasonable doubt in a Criminal Case: 85%

Certainty?– Proof on balance of probabilities in a Civil Case: 51 against 49?

• Burden of Proof– Prosecution in a criminal case– Party who alleges the facts (normally the plaintiff) has the burden

of proof

• Trial by jury• Trial by judge alone without jury• A quorum of two judges on the bench in the court of first instance• Court of Appeal – a quorum of three• The Supreme Court – a quorum of three except in plenary session for

cases of utmost importance

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Penalties in a Criminal Case

• Imprisonment • Imprisonment with suspended sentence• Put on probation• Given a community service order• Death penalty by lethal injection• Fine• Confiscation, exhibits shall be confiscated

• Custody, detention

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Conviction Stage and Sentencing Stage

• Conviction by proof beyond reasonable doubt

• Sentencing policy– Capital punishment considered to be

inhumane and cruel by European Convention on Human Rights but constitutional under US law

– Imprisonment– Alternatives to imprisonment – probation,

community service order

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Bail or Provisional Release• To avoid detention during trial, an accused may apply for

provisional release

• Court to examine the possibility of the accused avoiding court appearance or escaping the jurisdiction of the court “jumping bail”

• Security may be demanded for provisional release during trial

• Seen as guarantee of civil liberty and a testament for the notion ‘Innocence until proven guilty’

• What if the accused cannot post the bond or security? – Justice for the affordable and justice for the unaffordable?

• Make security affordable for the accused e.g. security in the form of a guarantee by third party

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At the Hearing of a Criminal Case

• The judge sits on the bench• Lawyers at the bar• Witness at the witness box• Witness to take an oath, or to make an

affirmation• “I swear to tell the truth, the whole truth

and nothing but the truth (so help me God – the American style).”

• Examination of witness

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Examination of Witness in a Criminal Case

• Examination • Cross-examination

• Re-examination• Leading question not to be asked in

examination or re-examination• Admissible and inadmissible evidence

• Weight of evidence• Hearsay evidence

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Protection of Basic Human Rights

• The accused who stands trial must know the essence and implication of the trial.

• To afford full opportunity in defending the charge.

• Appointment of attorney and interpreter by the court

• Inadmissibility of evidence obtained through unlawful means; coercion, torture, promise, fraud

etc.

• Right to contact one’s lawyer, Embassy or Consulate (in case of a foreign national)

• Privilege against self-incrimination

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Admissibility V. Weight of Evidence

• The reliability of eyewitnesses• The quality of light, the excitement, the length of

time, the resemblance with others (Ethnic similarities: Middle Eastern, Caucasian, African etc.)

• Eye witness in a murder case• Weight of the testimony of the victim in a sexual

offence case• The need for corroboration

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Sentencing in a Criminal Case

• Plead for mitigation circumstances

• Poverty, ignorance, lack of education, provocation, diminished responsibility, repentance etc.

• Aggravation circumstances

• Recidivist, aggravated result etc.

• Closing statement

• Opening statement

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Questions & Answers

Vichai Ariyanuntaka